7/31/2014

In a joint statement, the U.N. Secretary-General Ban Ki-moon and U.S. Secretary of State John Kerry announced that a cease-fire is set to begin Friday at 8:00 am in Gaza. It is set to last for 72 hours.

And while CNN wonders if the peace will last, the U.N. is talking about war crimes:

The bloodshed prompted the United Nations’ top human rights official to warn that war crimes may have been committed, accusing Israel of “deliberate defiance of obligations (to) international law.

U.N. High Commissioner for Human Rights Navi Pillay referred to the shelling of homes, schools, hospitals and U.N. “premises,” while insisting, “We cannot allow this impunity, we cannot allow this lack of accountability to go on.”

“None of this appears, to me, to be accidental,” Pillay said.

Obvioulsy, Pillay listened to Hillary Clinton’s enlightening analysis wherein she explained that if Gaza weren’t so darn small, Hamas wouldn’t have to hide rockets in hospitals and schools and other civilian areas. Yep. And did you know that it was Hamas that had its back against the wall, not Israel? Oh, the things you can learn.

–Dana

UPDATE BY PATTERICO: I am just happy to hear that the concerns of the FAA and others were “alloyed.”

The Central Intelligence Agency improperly and covertly hacked into computers used by Senate staffers to investigate the spy agency’s Bush-era interrogation practices, according to an internal investigation.

CIA Director John Brennan has determined that employees “acted in a manner inconsistent with the common understanding” brokered between the CIA and its Senate overseers, according to agency spokesman Dean Boyd.

The stunning admission follows a scathing, 40-minute speech by Senate Intelligence Chairwoman Dianne Feinstein on the Senate floor back in March, in which she accused the CIA of secretly accessing her panel’s computers that were used to review documents related to the government’s torture, detention, and rendition policies deployed during George W. Bush’s presidency. The powerful California Democrat lacerated the CIA for attempting to impede her panel’s investigation and charged the agency with possibly violating the Constitution.

At the time, Brennan denied Feinstein’s accusations, telling NBC News reporter Andrea Mitchell, “As far as the allegations of the CIA hacking into Senate computers, nothing could be further from the truth.… That’s beyond the scope of reason.”

Today, apparently, it’s . . . true.

Democrats are outraged, apparently because they were conducting a review of Bush-era CIA actions. I am outraged, because the principle matters more than the personalities or politics. (See the difference? I thought you might have caught that.)

Pols are saying Brennan should resign. That would be a start, although I won’t hold my breath. (Where would a top national security official get the idea that he could lie to Congress without consequence, anyway?)

Me, I want to see people criminally investigated. I have full faith and confidence in Eric Holder to do what is right.

(Protip: It’s easier to keep a straight face when people can’t see your face.)

[W]hen I tell “serious men” that I’m a political reporter for Cosmpolitan.com, their facial expressions soften into a sort of visual head-pat. When I quickly — often too quickly, a symptom of my own soft prejudice and lingering anxiety about what name-dropping a women’s magazine says about my intelligence and my skills as a journalist — add that before this I was a columnist at The Guardian and a contributor to publications like Al Jazeera America and The Nation, the light flickers back behind their eyes, along with the question: Why are you writing there?

Seriously, Jill, you really can’t figure out why people might not take anything in Cosmo seriously?

Personally, I’m so exhausted by their covers alone and finding out there are yet 50 or 60 or 70 more things to learn to drive him wild, that there simply isn’t the energy or will left to actually open up the magazine and read it.

The House voted yesterday to authorize a lawsuit against Obama for unilaterally changing the date by which businesses must comply with the provisions of ObamaCare. Democrats raised a lot of money recently by comparing this to impeachment — so naturally Big Media makes this, not about the merits of the lawsuit, but about whether conservatives are ruling out impeachment. Just look at Dana Milbank’s column, which doesn’t even tell you what the proposed lawsuit is about — but spends the whole column discussing whether the lawsuit is a stalking horse for impeachment.

Conservatives, for their part, are refusing to let Big Media set the narrative for them, and focusing on Obama’s unconstitutional actions dutifully falling in line with the Big Media narrative, and making this all about impeachment — with the True Conservatives pushing it, and the Pragmatists worried about the effects it might have on mid-term elections.

I will admit that my kneejerk reaction was that the suit was a dodge for a body unwilling to take on Obama for his excesses. But a kneejerk reaction is not always the right one. If you’re interested in the actual merits of the suit, and reading some reasons why the arguments you’ve heard against it might not be right, here’s a primer from National Review. Short version: contra what you may have heard, courts are sometimes willing to take on these issues (see the recent Supreme Court decision on recess appointments as one example), and why not sue in addition to other possible remedies? My view is: there’s no need to run down a possibly successful tactic until you have fully examined it.

Anyway, as interesting as the impeachment debate might be, we might consider focusing on what the lawsuit is about: Obama’s usurping of the legislative function. Or, you can just keep on playing into the lefty Big Media narrative and talk impeachment, impeachment, impeachment. Your choice — but as Simon Jester often says, think twice before doing something that makes David Axelrod smile.

In the meantime, here’s some good fun: Sheila Jackson Lee proclaiming yesterday that Democrats did not seek to impeach Bush.

I ask my colleagues to oppose this resolution for it is in fact a veiled attempt for impeachment and it undermines the law that allows a president to do his job. A historical fact that President Bush pushed this nation into a war that had little to do with apprehending terrorists. We did not seek an impeachment of President Bush, because as an executive, he had his authority. President Obama has the authority.

As BuzzFeed noted, Sheila Jackson Lee was a co-sponsor of Dennis Kucinich’s resolution to impeach Bush for leading us into the Iraq War.

The surprise is not that they lie, but that they are so laughably bad at it.

7/30/2014

I’ve been meaning to blog about this as it raises a number of interesting questions, but I’ll just focus one aspect of the sordid mess.

In a video that recently went viral, NFL Baltimore Ravens running back Ray Rice was shown dragging his seemingly unconscious then-fiancee out of an elevator in an Atlantic City casino. According to police, this was just moments after they attacked each other and he struck her with his hand.

Enter sports commentator Stephen A. Smith, who found himself in deep water for his comments:

“We know you have no business putting your hands on a woman. I don’t know how many times I got to reiterate that. But as a man who was raised by women, see I know what I’m going to do if somebody touches a female member of my family. I know what I’m going to do, I know what my boys are going to do. I know what, I’m going to have to remind myself that I work for the Worldwide Leader, I’m going to have to get law enforcement officials involved because of what I’m going to be tempted to do. But what I’ve tried to employ the female members of my family, some of who you all met and talked to and what have you, is that again, and this what, I’ve done this all my life, let’s make sure we don’t do anything to provoke wrong actions, because if I come, or somebody else come, whether it’s law enforcement officials, your brother or the fellas that you know, if we come after somebody has put their hands on you, it doesn’t negate the fact that they already put their hands on you. So let’s try to make sure that we can do our part in making sure that that doesn’t happen.”

“Now you got some dudes that are just horrible and they’re going to do it anyway, and there’s never an excuse to put your hands on a woman. But domestic violence or whatever the case may be, with men putting their hands on women, is obviously a very real, real issue in our society. And I think that just talking about what guys shouldn’t do, we got to also make sure that you can do your part to do whatever you can do to make, to try to make sure it doesn’t happen. We know they’re wrong. We know they’re criminals. We know they probably deserve to be in jail. In Ray Rice’s case, he probably deserves more than a 2-game suspension which we both acknowledged. But at the same time, we also have to make sure that we learn as much as we can about elements of provocation. Not that there’s real provocation, but the elements of provocation, you got to make sure that you address them, because we’ve got to do is do what we can to try to prevent the situation from happening in any way. And I don’t think that’s broached enough, is all I’m saying. No point of blame.”

Smith apologized this week for what he referred to as most egregious error of my career and sought to reassure that he was not blaming women for domestic abuse:

My words came across that it is somehow a woman’s fault. This was not my intent. It is not what I was trying to say. Yet the failure to clearly articulate something different lies squarely on my shoulders.

Apparently, it wasn’t enough for ESPN who suspended him from TV and radio for one week.

“Now some people are outraged, and let me just point out,” Whoopi began, “that the comment that he [Smith] made was based on what the young lady said she did.”

Goldberg’s co-hosts were quick to counter, saying that there is no reason for a man to hit a woman “unless his life is in jeopardy.”

“I’m sorry, if you hit somebody, you cannot be sure you are not going to get hit back,” Goldberg persisted.

“You have to teach women, ‘Do not put your hands on anybody.”

“I know I’m going to catch a lot of hell, and I don’t care,” Goldberg continued. “You hit somebody, they hit you back! Don’t be surprised!”

Responding to push back from her co-hosts who accused her of blaming the victim, Goldberg denied it, saying:

“If you make the choice as a woman who’s four foot three and you decide to hit a guy who’s six feet tall and you’re the last thing he wants to deal with that day and he hits you back, you cannot be surprised!”

Great news — if you put a lot of stock in the GDP number (which I don’t, for reasons I have explained in detail) — and if you ignore the fact that this is a bubble created by Fed policy, and that we have done nothing to fix the structural problems with our unsustainable fiscal policy and runaway entitlements.

I won’t be popping any champagne corks. But then, I don’t even like champagne.

I told you about the Origination Clause challenge in this post. The basic idea is that, ObamaCare being a tax, the Constitution requires it to “originate” in the House:

All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

The Senate got around it by using a “shell bill” process, which is common. The Senate takes a bill from the House and amends it to add whatever tax they want to add. The main difference here, I believe, is that the shell bill passed in the House from which ObamaCare emerged was not a bill for raising revenue. Usually, the shell bill is.

No matter. The D.C. Circuit (the same court that ruled for the good guys in Halbig, though not the same judges) has upheld ObamaCare against the Origination Clause challenge. Their reasoning? The primary purpose of the PPACA was not to raise revenue, and under Supreme Court precedent, that is apparently what matters.

The D.C. Circuit giveth and the D.C. Circuit taketh away.

This won’t go anywhere in the Supreme Court, by the way. Justice Scalia is on record as saying that, if Congress tells you the bill originated in the House, then it originated in the House, regardless of where it actually originated. I find that reasoning puzzling, but he does not sound likely to waver. There will not be five votes to overturn this ruling.

You can pretty much write the Origination Clause out of the Constitution at this point. In that state of exile, the Clause has a lot of company.

7/29/2014

In 1994, Colombian soccer player Andres Escobar was murdered after accidentally scoring a goal for the opposing U.S. team in the World Cup. For some reason, I was reminded of that story after learning that Washington Post blogger Greg Sargent, a big ObamaCare fan, has scored a big goal for conservatives in the Halbig case — by unwittingly advancing the arguments of the Halbig plaintiffs who oppose subsidies on federal exchanges.

Sargent helpfully traces the origin of the “established by the state” language in the PPACA, explaining that the Senate HELP Committee passed a version of health reform that provided for Affordable Health Benefit Gateways — something like an ObamaCare exchange. Sargent links a memo that explains, among other things: “Until a state becomes either an establishing or participating state, the residents of that state will not be eligible for premium credits.” (Premium credits are tax credits or subsidies. Remember this part, because it becomes important later.) Additionally, under the HELP Committee proposal, when the federal government set up fallback exchanges for states that had not set up their own, plans obtained on those federal exchanges would be eligible for subsidies. This is key: there was an explicit provision wherein subsidies were provided on the federal exchanges.

Later, in 2009, the Senate Finance Committee passed a version of the PPACA. For the first time, the phrase “established by the state” appeared in the law, but in this initial version there were no federal exchanges. In late 2009, the two bills were merged, and according to a staffer:

[W]e layered the HELP Committee language that established a federal fallback on top of the Finance Committee language that included ‘exchange established by the state.’

Here’s the problem that many conservatives have already identified: when the bills were merged, the HELP Committee bill’s explicit provision that subsidies were available on federal exchanges was dropped. Since Sargent’s post was published, several conservatives have convincingly argued that, applying standard rules of statutory construction, the disappearance of the provision allowing federal subsidies signifies that the drafters intended to drop it. The argument has been made by Jeff B. at Ace’s, Leon Wolf at RedState, and elsewhere. Baseball Crank gives you the basic argument in a concise tweet:

When explicit language drops out of a bill before it's final, courts treat that as proof it was removed on purpose http://t.co/nehLigBoF3

If Congress initially put specific language in the bill providing for subsidies on federal exchanges, and later took that language out, it’s assumed to be deliberate. Ouch!

But it gets even worse for Sargent. I’ve not seen anyone make this point yet, but Sargent has actually directly corroborated an argument made by the majority opinion in Halbig. Here is the Halbig opinion, and here is the key passage:

The government and its amici are thus left to urge the court to infer meaning from silence, arguing that “during the debates over the ACA, no one suggested, let alone explicitly stated, that a State’s citizens would lose access to the tax credits if the State failed to establish its own Exchange.”

The historical record, however, belies this claim. The Senate Committee on Health, Education, Labor, and Pensions (HELP) proposed a bill that specifically contemplated penalizing states that refused to participate in establishing “American Health Benefit Gateways,” the equivalent of Exchanges, by denying credits to such states’ residents for four years.

This is not to say that section 36B [the section of PPACA that provides for subsidies] necessarily incorporated this thinking; we agree that inferences from unenacted legislation are too uncertain to be a helpful guide to the intent behind a specific provision.

But the HELP Committee’s bill certainly demonstrates that members of Congress at least considered the notion of using subsidies as an incentive to gain states’ cooperation.

Conservatives discussing Halbig have argued that the “established by the state” language was designed to provide an incentive for states to establish exchanges — by withholding subsidies unless the states established the exchanges. Lefties like Sargent say that theory was cynically concocted after the fact. But the Halbig court said, in essence: no, actually, it is not outlandish to think that Congress might have intended to withhold subsidies as an incentive for states to establish exchanges. After all, the HELP Committee did exactly that, in related legislation. The only thing that keeps this from being a slam dunk argument is, we can’t establish a direct connection between the HELP Committee legislation and the language in the PPACA.

But Greg Sargent just did.

The Halbig majority couldn’t say that the provision for subsidies “necessarily incorporated” the thinking of the HELP Committee. Now, thanks to the work of Greg Sargent, the Halbig plaintiffs can argue exactly that — because now we know that the language of PPACA was taken directly from the HELP Committee proposal.

It’s not every day that a lefty ObamaCare fan hands a huge cudgel to opponents of the law. Thanks, Greg!

Just . . . watch your back, buddy. Andres Escobar, the Colombian soccer player, paid a heavy price for his “own goal.” Sargent faces a crowd that is arguably more ruthless than the Colombian soccer fans: the pro-Obama hard left. Shudder. I’d hate to be in Sargent’s shoes right now.

P.S. The Fourth Circuit opinion that ruled the opposite of Halbig, holding that subsidies are available on federal exchanges, dismissed the HELP Committee proposal in a footnote (footnote 3), saying that the plaintiffs put too much emphasis on it. Now that we know the HELP Committee proposal was a precursor to the very language at issue, future courts will have a tougher time dismissing the example with an airy wave of the hand.

UPDATE: Thanks very much to Instapundit for the link. New readers, please bookmark the main page and keep coming back!

“Chastity is so important. It is not only a name. It is an ornament for both women and men. [She] will have chasteness. Man will have it, too. He will not be a womanizer. He will be bound to his wife. He will love his children. [The woman] will know what is haram and not haram. She will not laugh in public. She will not be inviting in her attitudes and will protect her chasteness,” Arınç said, adding that people had abandoned their values today.

Great.

It’s unfortunate Arınç doesn’t focus on some of the more real insidious issues facing his country. But it’s even more unfortunate that he would likely be unable to see what the problem is…

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